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61995J0188 European Court reports 1997 Page I-06783 1
Judgment of the Court
of 2 December 1997
Fantask A/S e.a. v Industriministeriet (Erhvervministeriet).
Reference for a preliminary ruling: Ostre Landsret - Denmark.
Directive 69/335/EEC - Registration charges on companies - Procedural timelimits under national
law.
Case C-188/95.
1 Tax provisions - Harmonization of laws - Indirect taxes on the raising of capital - Registration of capital
companies - Duties paid by way of fees or dues - Concept - Charges in direct proportion to the capital
raised - Excluded
(Council Directive 69/335, Art. 12(1)(e))
2 Tax provisions - Harmonization of laws - Indirect taxes on the raising of capital - Charges levied in
breach of Directive 69/335 - Recovery - Procedures - Application of national law - Limits - Application of
a principle of national law excluding the recovery of charges levied in breach of Community law over a
long period and without the knowledge of either the national authorities or the persons liable to pay the
charges - Not permissible
(Council Directive 69/335)
3 Tax provisions - Harmonization of laws - Indirect taxes on the raising of capital - Charges levied in
breach of Directive 69/335 - Recovery - Limitation period - Application of national law - Permissible -
Conditions
(Council Directive 69/335)
4 Tax provisions - Harmonization of laws - Indirect taxes on the raising of capital - Directive 69/335 -
Articles 10 and 12(1)(e) - Direct effect
(Council Directive 69/335, Arts 10 and 12(1)(e))
5 On a sound construction of Article 12(1)(e) of Directive 69/335 concerning indirect taxes on the raising
of capital, in order for charges levied on registration of public and private limited companies and on their
capital being increased to be by way of fees or dues, their amount must be calculated solely on the basis
of the cost of the formalities in question. It may, however, also cover the costs of minor services
performed without charge. In calculating their amount, a Member State is entitled to take account of all
the costs related to the effecting of registration, including the proportion of the overheads which may be
attributed thereto. Furthermore, a Member State may impose flat-rate charges and fix their amount for an
indefinite period, provided that it checks at regular intervals that they continue not to exceed the average
cost of the registrations at issue. It follows that charges with no upper limit which increase directly in
proportion to the nominal value of the capital raised cannot amount to duties paid by way of fees or dues
within the meaning of Article 12(1)(e) of the directive, since the amount of such charges will generally
bear no relation to the costs actually incurred by the authority on the registration formalities.
6 Community law precludes actions for the recovery of charges levied in breach of Directive 69/335 from
being dismissed on the ground that those charges were imposed as a result of an excusable error by the
authorities of the Member State inasmuch as they were levied over a long period without either those
authorities or the persons liable to them having been aware that they were unlawful. While the recovery of
sums levied in breach of Community law may, in the absence of Community rules governing the matter,
be sought only under the substantive and procedural conditions laid down by the national law of the
Member States, those conditions must nevertheless be no less favourable than those governing similar
domestic claims nor render virtually impossible or excessively difficult the exercise of rights conferred by
Community law. The application of a general principle of national
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